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62 d Congress { 
2d Session \ 


SENATE 


( Document 
} No. 406 


THE 

COMPULSORY INITIATIVE AND 
REFERENDUM AND THE 
RECALL OF JUDGES 


A 


fi < // ^ 7 



J 


AN ADDRESS 


HENRY CABOT LODGE 

DELIVERED AT 

PRINCETON UNIVERSITY 

MARCH 8, 1912 



WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1912 
















In the Senate of the United States, 

March 13, 1912. 


Ordered, That the address of the Hon. Henry Cabot Lodge, entitled “ The 
Initiative, Referendum, and Recall,” delivered at Princeton, N. J., March 8, 1912, 
be printed as a Senate document. 

Attest: 


2 


Chas. G. Bennett, 

Secretary. 

By H. M. Rose, 

Assistant Secretary. 


f. 


R nr 

SS '§1? 















THE COMPULSORY INITIATIVE, REFERENDUM, AND THE 
RECALL OF JUDGES. 


In discussing a subject so momentous as the principles of govern¬ 
ment it is of great importance to determine at the outset exactly what 
we mean by the terms we use. Nothing is more dangerous, when we 
are trying through inquiry to arrive at direct results, than to be the 
slaves of words or phrases. We all believe in liberty, for instance, 
and desire to promote it, but explanatory words are needed for the 
liberty we mean, and the only liberty worth having is an ordered 
freedom and not the license which knows no law. The word “ prog¬ 
ress ” has been much used of late in public discussion, but mere 
progress is not necessarily good. Everything depends on the direc¬ 
tion in which the progress is made. We speak, for example, of the 
progress of a disease, which is a most undesirable progress either 
in a human being or in a body politic. Progress is our aim and 
purpose only when it means an advance from bad to good, from 
good to better, or from better to best. The word “ people,” again, 
in connection with the constitutional changes which have been ad¬ 
vocated for the last few years, is also used in a misleading manner. 
The “ people ” referred to in the Constitution means all the people of 
the United States. “ People ” as referred to in popular discussion by 
those who favor radical alterations in our Constitution invariably 
means a majority of the voters, which is a totally different thing from 
the people. It is quite true that the voters are the channel through 
which we necessarily obtain an expression of the popular will, but a 
majority of the voters are not necessarily the people and do not at 
all times represent the real wishes of the people. 

The majority of those who vote on any given question may be a 
very narrow one. It may be a very ephemeral one. The majority of 
one year may be the minority of the next, and yet you win observe 
that in all the practical arrangements for the compulsory initiative 
and referendum and for the recall of judges the people who can com¬ 
pel the initiative and who in practice carry the referendum, the num¬ 
ber who can force a recall and who, in its practical operation, may 
be able to carry it, are but a small minority of the voters. To start 
the initiative or the recall, in all the provisions that I have seen, only 
a minority, sometimes a very small percentage, of those who voted at 
the last election is required.” When the act asked for has been adopted 
by the legislature and referred, it appears, if experience is of any 
value, that a large proportion of the voters express no opinion, either 
from indifference or from not comprehending the question, while the 
small and interested minority take pains to vote for the law, the sub¬ 
mission of which to the voters has been compelled by their original 
action. The result is that laws are placed upon the statute book 
without any sufficient evidence that they are there—I will not say by 



4 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 


the will of the people, but even by the will of the majority of the 
registered voters. A small minority of the voters would be generally 
effective under these methods, and of course a small minority of the 
voters is a still smaller minority of the people, for the voters them¬ 
selves are a comparatively small minority of the whole people. There¬ 
fore it is important to bear in mind that when it is proposed to make 
the Government more directly a government of the people, what is 
intended is to make the Government more clearly responsive and more 
absolutely under the control of the majority of the voters, whether 
that majority is large or small. Also it is to be remembered that 
this will result in the destruction of representative government, about 
which I shall have something to say later on, and it is the substitu¬ 
tion of the will of a portion of the voters for the will of all the 
voters who are now represented by the legislative bodies. I can not 
express my meaning better than by quoting from a distinguished ex¬ 
president of this university, who says in his book on Constitutional 
Government, published in 1908: 

There are many evidences that we are losing confidence in our State legisla¬ 
tures, and yet it is evident that it is through them that we attempt all the more 
intimate measures of self-government. To lose faith in them is to lose faith 
in our very system of government, and that is a very serious matter. It is this 
loss of confidence in our legislatures that has led our people to give so much 
heed to the radical suggestions of change made by those who advocate the use 
of the initiative and the referendum in our processes of legislation, the virtual 
abandonment of the representative principle ,* and the attempt to put into the 
hands of the voters themselves the power to initiate and negative laws, in order 
to enable them to do for themselves what they have not been able to get satise 
factorily done through the representatives they have hitherto chosen to act for 
them. 

In the same way, when we come to the consideration of the Consti¬ 
tution, upon which I am to have the honor to speak to you to-night,, 
it is important to know just what we mean by a u constitution.” A 
constitution in its proper significance, as I understand it, is a decla¬ 
ration of certain broad principles upon which government must be 
based and by which laws are to be tested. The people with great de¬ 
liberation agree upon these general principles, submitted to them by 
men capable of defining and formulating them, and then they are 
adopted by the voters after long consideration and debate. They 
are not put beyond the possibility of change, as we are told was the 
case with the laws of Lycurgus, but change or amendment of the in¬ 
strument are provided for under conditions which not only make 
alteration difficult but which are framed to secure as nearly as pos¬ 
sible the expression of the will of an overwhelming majority of the 
voters who represent the people. Laws which are subsequently 
passed by the legislative bodies called into being by the constitution 
are to be tested and tried by the general principles which the people 
have established as the foundation of all government. In this coun¬ 
try we have fallen into the bad habit in most of the States of placing 
in constitutions provisions which should be the subject of laws and 
statutes and which have no relation to general principles. The effect 
of this has been extremely unfortunate, for it has caused a wide¬ 
spread feeling that constitutions do not differ from laws; that they 
may deal with any subject and be the receptacle of any ideas which 


Note.—T he italics are mine. 





INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 


5 


at tlie moment happen to be popular. This involves not only a com¬ 
plete misapprehension of the true purposes of the constitution, but 
tends to destroy the sanctity which an instrument embodying great 
general principles of government ought always to possess. I can 
not put the point which I have been trying to make better than by 
quoting again the former distinguished president of this university. 
In a work entitled “ The State,” in section 896, dealing with this 
habit of regarding the constitution as if it was an ordinary law, Mr. 
Wilson says: 


The objections to the practice are as obvious as they are weighty. General 
outlines of organization, such as the Constitution of the United States con¬ 
tains, may be made to stand without essential alteration for long periods 
together, but in proportion as constitutions make provision for interests whose 
aspects must change from time to time with changing circumstances they 
enter the domain of such law as must be subject to constant modification and 
adaptation. Not only must the distinctions between constitutional and ordinary 
law hitherto recognized and valued tend to be fatally obscured, but the much 
to be desired stability of constitutional provisions must in great part be sacri¬ 
ficed. Those constitutions which contain the largest amount of extraneous 
matter, which does not concern at all the structure or functions of government, 
but only private or particular interests, must, of course, however carefully 
drawn, prove subject to most frequent change. In some of our States, accord¬ 
ingly. constitutions have been as often changed as important statutes. The 
danger is that constitution making will become with us only a cumbrous mode 
of legislation. 

The Constitution of the United States, which Mr. Wilson cites, is 
a true representative of what a constitution should be. It contains 
only general principles, with provisions merely for the machinery 
necessary to carry on the Government based on those general prin¬ 
ciples. The first ten amendments to the Constitution, adopted imme¬ 
diately after its ratification by the required number of States, are in 
reality a bill of rights and were placed there as the famous bill of 
right's was placed in the statute book of England and as the bill of 
rights was placed in the constitution of 1780 of Massachusetts, a 
constitution which still endures, with the view of protecting the 
rights of the individual man and of the minority against the possible 
tyranny of the majority. Eord Acton, in his History of Freedom, in 
one of the essays on liberty, says: 

The most certain test by which we judge whether a country is really free is 
the amount of security enjoyed by minorities. 

The Constitution of the United States, with its first ten amend¬ 
ments, meets that severe test more successfully, I believe, than any 
constitution ever framed by man. Let me quote once more the same 
eminent authority in history as to what we accomplished in America 
when we framed the Constitution of the United States. 


American independence was the beginning of a new era, not merely as a 
revival of the Revolution, but because no other revolution ever proceeded from 
so slight a cause or was ever conducted with so much moderation. The Euro¬ 
pean monarchies supported it. The greatest statesmen in England averred that 
it was just. It established a pure democracy, but it was democracy in its 
highest perfection, armed and vigilant, less against aristocracy and monarch? 
than against its own weakness and excess. \\ hilst England was admired foi 
the safeguards with which, in the course of many centuries, it: had fortified 
liberty against the power of the crown, America appeared still more worthy 
of admiration for the safeguards which, in the deliberations of a single memo¬ 
rable vear, it had set up against the power of its own sovereign people. It 
resembled no other known democracy, for il respected freedom, authority, and 


6 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 


law. It resembled no other constitution, for it was contained in half a dozen 
intelligible articles. Ancient Europe opened its mind to two new ideas—that 
revolution with very little provocation may be just and that democracy in very 
large dimensions may be safe. 

No greater tribute than this has ever been paid to the Constitution 
of the United States and it is all stated with the precision and the 
weight of a profound student of human history. What he says of 
our Constitution follows an essay upon “ Freedom in antiquity,” 
in which he sketches the rise and fall of Athenian democracy, the 
gradual departure from the laws of Solon, the development of legis¬ 
lation by direct popular vote, and the removal of all limitations upon 
the power and action of the majority. Let me read to you the words 
in which Lord Acton sums up the result: 

The philosophy that was then in the ascendant taught them that there is no 
law superior to that of the State—the lawgiver is above the law. 

It followed that the sovereign people had a right to do whatever was within 
its power, and was bound by no rule of right or wrong but its own judgment 
of expediency. On a memorable occasion the assembled Athenians declared it 
monstrous that they should be prevented from doing whatever they chose. 
No force that existed could restrain them; and they resolved that no duty 
should restrain them, and that they would be bound by no laws that were not 
of their own making. In this way the emancipated people of Athens became 
a tyrant; and their Government, the pioneer of European freedom, stands 
condemned with a terrible unanimity by all the wisest of the ancients. They 
ruined their city by attempting to conduct war by debate in the market place. 
Like the French Republic, they put their unsuccessful commanders to death. 
They treated their dependencies with such injustice that they lost their mari¬ 
time Empire. They plundered the rich until the rich conspired with the public 
enemy, and they crowned their guilt by the martyrdom of Socrates. 

When the absolute sway of numbers had endured for near a quarter of a 
century, nothing but bare existence was left for the State to lose; and the 
Athenians, wearied and despondent, confessed the true cause of their ruin. 

* * * The repentance of the Athenians came too late to save the Republic. 

But the lesson of their experience endures for all times, for it teaches that 
government by the whole people, being the government of the most numerous 
and most powerful class, is an evil of the same nature as unmixed monarchy, 
and requires, for nearly the same reasons, institutions that shall protect it 
against itself, and shall uphold the permanent reign of law against arbitrary 
revolutions of opinion. 

My purpose in citing this passage from Lord Acton is not to re¬ 
mind you of the failure of Athenian democracy, but to call to your 
attention, what it is of the utmost importance to remember in the dis¬ 
cussion in which we are engaged, and that is that the propositions 
now offered for changing our system of government and our Con¬ 
stitution are all very old. Legislation by direct popular vote was 
familiar to the Athenians and you have but to read “ The Republic ” 
and the “ Laws ” of Plato and the “ Politics ” of Aristotle to find out 
that there are scarcely any ideas in regard to government which were 
not developed and discussed bv the Greeks, men of perhaps the high¬ 
est intelligence which the world has ever seen. In the same way, legis¬ 
lation by direct popular vote coupled with the veto of the Tribunes 
of the people, was practiced in Rome and the outcome is familiar to 
all the world. The result was the despotism of the Caesars. The 
one great contribution of modern times to the science of government 
has been the representative system. There were hesitating steps 
taken in that direction during the Middle Ages, but the real develop¬ 
ment of the representative principle was effected in England and 
has been the glory of the English-speaking race. Representative 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 7 

government, in other words, stood for a great advance over the demo¬ 
cratic systems of Greece and Rome and of the medieval Italian 
cities. I am not now concerned to show from history which system 
was the more successful. I merely desire at this point to call your 
attention to the fact that, while it might be better or worse to adopt 
legislation by direct vote as a substitute for representative govern¬ 
ment, there can be no question whatever that to abandon representa¬ 
tive government and take up in its place legislation by direct vote is 
to return from a high stage of evolution to a lower and more primi¬ 
tive one. The life of the amoeba may be a better life and a more 
enviable one than that of the elephant, for example, but there can 
be no question that the amoeba is a lower stage in the scale of evolu¬ 
tion than is the elephant. 

There is therefore nothing new in these propositions as to legisla¬ 
tion by direct vote, and if we examine the scheme for the recall of 
judges we shall see that there is nothing novel in that idea either, 
for not only has control of the courts by the sovereign authority been 
familiar at all stages of history, but the actual practice of judicial 
recall was attempted in France during the Revolution of 1848. The 
provisional government made the judges removable at pleasure, and 
if you will take the trouble to read the manifestoes issued by Ledru- 
Rollin you will see how he asks the voters to let him know if any 
j udge does not behave in accordance with their wishes, so that he may 
remove the peccant magistrate, and he further calls attention to the 
fact that the judges are on the bench simply to do the popular will. 
They had also, at the time of that Revolution in 1848, not only this 
control of the judges under the provisional government, but also the 
u mandat imperatif ” and government workshops. I will only pause 
long enough to say that the result of those experiments in Franee was 
the plebiscite and the Third Napoleon. Representative government 
and liberty faded away together and the executive became all power¬ 
ful. Therefore I repeat that in these propositions now made to us 
there is nothing new. They are old propositions. We are to-day 
asked to lay aside the great advance in government made, as history 
shows, by the representative system and return to earlier forms. 

Let us first consider the compulsory initiative and referendum in 
their practical working. One of the great arguments used by the 
advocates of these changes in our Constitution is that by obtaining the 
direct action of the voters we shall be free from the demoralizing 
influence and from the control of money in politics and in our legisla¬ 
tures. In the alterations, so generally made of late in our election 
laws in order to compel nominations to be made in popular primaries, 
we have an opportunity to test the claim which has been advanced in 
favor of these reforms, that we should thereby rid ourselves of the in¬ 
fluence of money. The method of choosing executive officers or mem¬ 
bers of the legislature is an alteration only in the mechanism of 
government, although I personally think that many of these changes 
are and have proved to be injurious and not beneficial. But none the 
less these primary systems afford us, as I have just said, an excellent 
opportunity of testing the question of the use of money under a system 
of direct popular action. I have always believed theoretically that 
the more elections and elective offices were multiplied, and the more 
elaborate the machinery for selecting and electing candidates, the 


8 INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 

larger the field for professional politicians and for the employment of 
money to control election results. The evidence afforded by the pri¬ 
mary system in actual operation seems to confirm this theory. In the 
contest which has arisen over the seat of Senator Stephenson, of 
Wisconsin, where the primary system is in full operation, some inter¬ 
esting facts have been brought out. It appears that in 1909, at the 
time when Senator Stephenson was nominated in the primaries, the 
expenditures at the primary election by all candidates, exclusive of 
the amounts spent by the senatorial candidates, is conservatively esti¬ 
mated on the returns required by law at $610,174, and if the amount 
expended by all the senatorial candidates be added the total amount 
spent in those primary elections comes to $802,659, while the total 
vote, Republican and Democratic, was 230,291. In other words, it cost 
$3.48 per vote to get that number of voters to the polls, and I believe 
that I am right in saying that only about one-half of the Republican 
vote of the State was actually polled in the primaries. Nothing in 
the past under the old convention system has equaled this really 
appalling expenditure at the primaries in a single year and in a 
single State. From this evidence of the primaries, what reason have 
we to hope that money will not play an enormous part in securing the 
initiation, the reference, and the adoption of any adroitly drawn 
laws which the great money' interests may happen to desire? 

The practical workings of the compulsory initiative and the com¬ 
pulsory referendum need not detain us long, for the effect of those 
devices is obvious enough. The entire virtue or the entire vice—each 
of us may use the word he prefers—of these schemes rests in the word 
“ compulsory.” The initiative without compulsion is complete in the 
right of petition secured by the first of the first ten amendments to the 
Constitution, which really constituted a bill of rights. The right of 
petition became the subject of bitter controversy at a later time and 
was vindicated once for all by John Quincy Adams’s great battle in 
its behalf, more than three-quarters of a century ago. There are few 
instances where petitions representing a genuine popular demand 
have not met a response in action, whether in Congress or in the State 
legislatures; still fewer where respectful attention and consideration 
have not been accorded to them. But the responsibility for action 
and the form such action should take has rested with the repre¬ 
sentative body. When the initiative is made compulsory a radical 
change is effected. As I have already pointed out, a minority, some¬ 
times a small minority of the voters, always a small minority of the 
people, can compel the legislature to pass a law and submit it to the 
voters even when a very large majority of the people neither ask for 
nor, so far as the evidence goes, desire it. In this w T ay all responsi¬ 
bility is taken from the representative body and they become mere 
clerks for drafting and recording laws, poor puppets who move me¬ 
chanically when some irresponsible outsiders twitch the strings. It 
is the substitution of government by factions and fractions for govern¬ 
ment by the people. The representative body as hitherto constituted 
represented the whole people. Under the new plan it is to be merely 
the helpless instrument of a minority, perhaps a very small minority, 
of the voters. 

The voluntary referendum has always existed in this country. In 
the National Government, owing to our dual or Federal form, the 
referendum on constitutional amendments is necessarily made to 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 9 

the States and it has never been suggested for the laws of the United 
States, owing to both physical and constitutional difficulties. In 
the States the referendum has always been freely used, not only for 
constitutions and constitutional amendments but for laws, especially 
for city charters, local franchises, and the like. But if, on the demand 
of a minority of the voters, the referendum is made compulsory, all 
responsibility vanishes from the representative body. The representa¬ 
tive no longer seeks to represent the whole people or even his own 
constituency, but simply votes to refer everything to the voters, and 
covers himself completely by pointing to the compulsory referendum. 
On the other hand, the. voters are called upon to legislate. Of the 
mass of measures submitted they know and can know nothing. Ex¬ 
perience shows that in all referendums a large proportion of the 
voters decline to vote. Whether this is due to indifference or to lack 
of information the result is the same. It proves that this system 
demands from the voters what the most intelligent voters in the world 
are unable to give. They are required to pass upon laws, many of 
which they have neither time nor opportunity to understand, with¬ 
out deliberation and without any discussion except what they can 
gather from the campaign orator, who is, as a rule, interested in other 
matters, or from an occasional article in a newspaper. They can not 
alter or amend. They must vote categorically “ yes ” or “ no.” The 
majority either fails to vote,'and the small and interested minority 
carries its measure, or the majority, in disgust, votes down all meas¬ 
ures submitted, good and bad alike, because they do not understand 
them and will not vote without knowing what their votes mean. 

Look, now, for a moment at representative government as we our¬ 
selves have known it. Let us not forget, in the first place, that the 
Congress of the United States under the Constitution has been in 
continuous existence for more than 120 years; that with the single 
exception of the “Mother of Parliaments” it is much the oldest 
representative body of a constitutional character now existing in the 
world. Let us also remember that the history of the American 
Congress is in large part the history of the United States, and that 
we are apt to be proud of that history as a whole and of the many 
great things we as a people have accomplished. Yet whatever praise 
history accords to the Congress of the United States in the past the 
Congress of the moment and the Members of that body in either 
branch receive but little commendation from their contemporaries. 
This is perhaps not unnatural, and it certainly has always been cus¬ 
tomary. Legislative bodies have rarely touched the popular imag¬ 
ination or appeared in a dramatic or picturesque attitude. The 
Conscript Fathers, facing in silence the oncoming barbarians of 
Gaul; Charles the First attempting to arrest the five members; the 
Continental Congress adopting the Declaration of Independence; 
the famous Oath of the Tennis Court are almost the only instances 
which readily occur to one’s mind of representative and legislative 
bodies upon whom for a brief instant has rested the halo of hero¬ 
ism and from which comes a strong appeal to the imagination. The 
men who fight by land and sea rouse immediate popular enthusiasm, 
but a body of men engaged in legislation does not and can not offer 
the fascination or the attraction which are inseparable from the 
individual man who stands forth alone from the crowd in any great 
work of life, whether of war or peace. 

38971—S. Doc. 406, 62-2-2 


10 INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 

We may accept without complaint this tendency of human nature* 
but I think every dispassionate student of history, as well as every 
man who has had a share in the work of legislation, may rightfully 
deprecate the indiscriminate censure and the consistent belittling 
which pursue legislative bodies. This attitude of mind is not con¬ 
fined to the United States. The press of England treats its Parlia¬ 
ment severely enough, although on the whole with more respect than 
is the case with the American press in regard to the American Con¬ 
gress. But running through English novels and essays we find as 
a rule the same sneer at the representatives of the people as we do 
here. Very generally, both in this country and abroad, those who 
write for the public seem to start with the proposition that to be a 
Member of Congress or a member of Parliament or a member of 
the Chamber of Deputies in France implies some necessary inferior¬ 
ity of mind or character. I do not desire to be rash or violent, but 
I think this theory deserves a moment’s examination and is, per¬ 
haps, open to some doubt. | As Mr. Peed once said, it is a fair infer¬ 
ence that a man who can impress himself upon 200,000 people or 
upon the whole population of a great State sufficiently to induce 
them to send him to the House or Senate has something more than 
ordinary qualities and something more than ordinary force. Then, 
again, as Edmund Burke remarked, you can not draw an indictment 
against a whole people, nor, I may add, can you draw an indictment 
against an entire class. There are good men and bad men in busi¬ 
ness and in the professions, in the ministry, in medicine, in law, 
and among scholars. Virtue is not determined by occupation. 
There are, I repeat, good and bad men in every profession and call¬ 
ing, among high and low, rich and poor, and the honest men who 
mean to do right largely preponderate, for if they did not the whole 
social structure would come crashing to the ground, j 

What is true of business and the professions is true of Congress. 
There are good and bad men in public life, and the proportion of 
good to bad, I believe, compares favorably with that of any other 
occupation. Public men live in the fierce light which beats upon them 
as upon a throne, a light never fiercer or more pitiless than now, 
and for this reason their shortcomings are made more glaring and 
their virtues by contrast more shadowed than in private life. This is 
as it should be, for the man who does wrong in private life is far less 
harmful than the public servant who is false to his trust. To inflict 
upon the public servant who is a wrongdoer the severest reprobation 
is necessary for the protection of the community, but for this very 
reason we should be extremely careful that no reprobation should be 
visited unjustly on any public man. It is an evil thing to betray the 
public trust, but it is an equally evil thing to pour wholesale con¬ 
demnation upon the head of every man in public life, good and bad 
alike. That which suffers most from an injustice like this in the long 
run is not the public servant who has been unfairly dealt with, for 
the individual passes quickly, but the country itseli. After all, the 
voters make the Representatives. If he is not of the highest type, he 
appears to be that which the majority prefers. Wholesale criticism 
and abuse of the Representatives reflect more on the constituencies, if 
we stop to consider, than on those whom the constituencies select to 
represent them. Indiscriminate condemnation and equally indiscrimi- 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 11 

nate belittling of the men who make and execute our laws, whether in 
fetate or Nation, is not only a reflection upon the American people, 
but is a blow to the United States and every State in it. They help 
the guilty to escape and injure the honest and the innocent. They 
destroy the people’s confidence in their own Government and lower 
the country in the eyes of foreign nations. 

The Congress of the United States embodies the representative 
principle. The principle of representation, I repeat, has been the 
great contribution of the English-speaking race to the science and 
practice of government. The Greeks and the Romans, let me say once 
more, had pure democracy and legislation by direct vote in theory, 
at least. Greece failed to establish an empire; she touched the highest 
peaks of civilization, and finally went to pieces politically beneath the 
onset of Rome. Rome established a great empire, but, after years 
of bloody struggles between aristocracy and democracy, ended in a 
simple despotism. The free cities of Italy oscillated between anarchy 
and tyranny, only to fall victims in the end to foreign masters. In 
Florence they had elections every three months and a complication 
of committees and councils to interpret the popular will. Yet the 
result was the Medicis and the Hapsburgs. 

It is also to be remembered that the representative principle has 
been coincident with political liberty. Whatever its shortcomings or 
defects, and, like all things human, it has its grave defects, it none 
the less remains true that the first care of every “ strong man,” every 
“ savior of society,” every “ man on horseback,” of every autocrat, is 
either to paralyze or to destroy the representative principle. It may 
be that the representative principle is not the cause of political liberty, 
but there can be no question whatever that the two have always gone 
hand in hand and that the destruction of one has been the signal for 
the downfall of the other. The Congress of the United States and the 
legislatures of the several States embody the representative principle. 
By that principle your laws have been made and the republican form 
of government sustained for more than a century. Whatever its 
shortcomings, it has maintained the Government of the United States 
and upheld law and order throughout our borders. 

With such a history, and typifying as it does the great doctrines 
which were embodied in the Declaration of Independence, the Con¬ 
stitution of the United States, and the institutions of England, it 
may fairly be asked that if the representative principle must be criti¬ 
cized, as it should be with severity when it errs, it should also be 
treated with that absolute justice which is not only right in the 
abstract but which is essential to the maintenance of iaw, order, and 
free government, to human progress and to the protection of the 
weak, even as the fathers designed that it should be. When we 
blame its failures let us not forget its services. They have broadened 
freedom down from precedent to precedent. They shine across 
those pages of history which tell the great story of the advance of 
liberty and of the ever-widening humanity which seeks to make the 
world better and happier for those who most need happiness and 
well-being. In beneficent results for the people at large no other 
form of government ever attempted can compare with it for a 
moment. 

The worst feature of the compulsory initiative and referendum lies 
therefore in the destruction of the principle of representation. 


12 INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 

Power without responsibility is a menace to freedom and good gov¬ 
ernment. Responsibility without power is inconceivable, for no man 
in his senses would bear such a burden. But when responsibility and 
power are both taken away, whether from the executive or the repre¬ 
sentatives, the result is simple inanition. No man fit by ability and 
character to be a representative would accept the office under such 
humiliating conditions. Those who accepted it would do so for the 
pecuniary reward which the office carried and would sink rapidly 
into mere machines of record, neither knowing nor caring what they 
did. With a representative body thus reduced to nothingness we 
are left with the people, armed only with their votes, and with an 
executive who has necessarily absorbed all the real powers of the 
State. This situation is an old story and has always ended in the 
same way. It presents one of those rare cases in which the teach¬ 
ing of history is uniform. When the representative principle has 
departed and only its ghost remains to haunt the Capitol, liberty has 
not lingered long beside its grave. The rise of the representative 
principle and its spread to new lands to-day marks the rise of popu¬ 
lar government everywhere. Wherever it has been betrayed or cast 
down the government has reverted to despotism. When representa¬ 
tive government has perished freedom has not long survived. 

All these plans to make the people carry on their governments by 
impracticable methods are not only unjust and dangerous to the peo¬ 
ple and to the public welfare, but they tend to bring all popular gov¬ 
ernment into discredit. Do not misunderstand me. I attach no 
superstitious reverence to forms of government. I make no fetich of 
laws and constitutions, for constitutions are made for men, not men 
for constitutions. I have no patience with the theory held by some 
persons, and often pernicious in its activity, that human nature can 
be changed and all men made virtuous and happy by statute. Peo¬ 
ple, according to my observation, get in the long run the government 
they desire and deserve, and if they suffer from bad government, it is 
because they are too inert or too incapable or too timid or perhaps 
too corrupt to secure anything better. Government and the success 
of government in the last analysis depend on the character of the 
people themselves. People with a high capacity for self-government 
will make a bad system work well, or at least tolerably well, while 
people without that capacity will come to confusion and ruin under 
the most ideally perfect system which the wit of man can devise. 
But wffiile it is profoundly true that people make laws, not laws peo¬ 
ple, the importance and effect of laws, constitutions, and political 
institutions are none the less very great. The essential point is to 
comprehend in what that importance consists and to gauge rightly 
the effect and educational force of laws and constitutions: in a word, 
to realize what laws can and what they can not do. We must not for¬ 
get that if statutes can not change the laws of nature, it is equally a 
mistake to accept the Quietist doctrine of Pope when he said in his 
familiar lines: 

For forms of government let fools contest; 

Whate’er is best administered is best. ' 

Allow me now to illustrate my meaning. Wise economic laws af¬ 
fecting the currency or the tariff can not of themselves make pros¬ 
perity. They can help very greatly to bring prosperity if a people be 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 13 

energetic and industrious and other conditions are favorable, but 
alone, they can not do it. On the other hand, bad economic laws, 
especially such as affect the circulating medium, can unaided and 
alone bring panic and disaster. To state this as a general proposition, 
we may say that while the effect of good economic laws for good is 
limited, the effect of bad economic laws for evil is unlimited. The 
power of economic statutes to injure is much greater than their power 
to benefit. This rule applies not only to all economic legislation, but 
to all laws. There is no panacea for human ills to be found in 
statutes. Statutes may help greatly; they may and do modify and 
alleviate and improve evil conditions, but there their possibilities end, 
and many misfortunes have happened to mankind from the mistaken 
conception of the possibility of statute making. On the other hand, 
the power of bad laws to bring on ruin, disaster, civil strife, and the 
downfall of governments and nations is practically unbounded. It is, 
then, of the last importance to consider carefully what the full effect 
of any law will be, and not open the door, for the sake of an apparent 
remedy for some special evil, to a thousand worse evils which might 
involve all in a common disaster. Laws, therefore, not only assume a 
vast importance, but also the methods and instrumentalities by which 
they are made. Good laws are not to be expected if you impose condi¬ 
tions upon their making incompatible with good results. The best 
glazier in the world can not cut a square of glass if you insist that ha 
shall do it with a broadax or a pointed stick. Under such conditions 
he would merely smash the glass, and you and not he would be to 
blame. You must give him a diamond point, and you will get your 
window pane. You can impose conditions on a people under which it 
will be impossible for them to secure good legislation, and it will not 
be any reflection upon them or their capacity for self-government if 
they bring forth laws which work a ruin and disaster as widespread 
as they are needless. It shows no more distrust to insist that the peo¬ 
ple shall use wise and well-tried methods of legislation to obtain the 
laws they desire than it shows distrust of the glazier to insist that he 
.shall use a proper tool to cut his square of glass. • 

I trust the people fully. I believe, what the advocates of the 
initiative and refer endum .-deny f that they are able to choose their 
own representatives and to control them. I do not think the people 
are so weak or so stupid that they can not choose men who will fitly 
represent them, and that they can not reject their representatives if 
those representatives do not perform their duties, I think the people 
are eminently capable of governing themselves by proper methods, 
and that their power should not be distorted and crippled by im¬ 
possible devices. But the great and fundamental objection to the 
compulsory initiative and referendum is the destruction of the repre¬ 
sentative principle which they necessarily involve. When that is 
broken down nothing remains but the executive and the courts. With 
the representatives deprived of power the courts would not long re¬ 
tain their independence, and when the executive department alone 
survives we are well on the road to despotism. The resort to the 
Plebiscite is the favorite device of the usurper and savior of society. 
His opportunity comes when disorder, license, and wild legislation 
have driven the mass of men to a readiness to sacrifice liberty in the 
determination to have peace and order, a sad and desperate situa¬ 
tion, familiar, unhappily, in the world’s history. Moreover, the 


14 INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 


advent of the strong man and the army are always coincident with 
the breaking down of representative government. What we want 
above all things is to preserve the representative bodies which have 
ever been the guardians of freedom and of popular liberties in this 
country. I trust the people so thoroughly that I believe they can 
conduct their Government with honor and success, as they have done 
for so many generations. Times change and conditions change with 
them. We must meet the new times and the change in conditions 
with the legislation which they demand, but in dealing with our 
new problems it is not necessary to cast away the instruments by 
which every reform and every improvement has hitherto been ef¬ 
fected. I am not one of those who believe that all wisdom died with 
our forefathers. I am equally far from believing that all wisdom 
was born yesterday. This is not a new question, but involves the 
oldest theories of government, and here, if anywhere, history and 
experience are safe and illuminating guides which only ignorance 
and folly would neglect or disregard. The great men who framed 
our Constitution provided both in State and Nation for checks and 
balances because they believed that the rights of the people could 
only be protected if every possible safeguard was thrown around 
the lawmaking power. They believed that that power ought only 
to be exercised with the utmost care and deliberation, and in seeking 
that care and deliberation they believed that they were protecting 
the rights of the people. They saw in hasty legislation great perils, 
and they never had the slightest fear that the legislative body would 
not respond quickly enough to the popular wishes. They had a 
great dread of executive power and a deep desire to protect the 
rights of minorities. The majority, they believed, ought to rule, but 
they wished to be very sure that majority rule should not be rashly 
or hastily exercised. They wished the members of a majority always 
to remember that the} T might find themselves any day in a minority, 
and therefore they took the utmost pains to secure everj^ opportunity 
in legislation for debate and amendment. 

Most serious^ most fatal indeed are the dangers threatened by the 
insidious and revolutionary changes which it is proposed to make in 
our representative system, upon which the makers of the Constitu¬ 
tion relied as one of the great buttresses of the political fabric which 
was to insure to popular government, success and stability. Yet even 
these changes are less ruinous to the body politic, to liberty and order, 
than that which proposes to subject judges to the recall. No graver 
question has ever confronted the American people. 

The men who framed the Constitution were much nearer to the 
time when there was no such thing as an independent judiciary than 
we are now. The bad old days, when judges did the bidding of the 
King, were much more vivid to them than to us. What is a common¬ 
place to us was to them a comparatively recent and a hardly won 
triumph. The fathers of some of those men—the grandfathers of 
all—could recall Jeffreys and the “ Bloody Assize.” They knew well 
that there could be no real freedom, no security for personal liberty, 
no justice, without independent judges. It was for this reason that 
they established the judiciary of the United States with a tenure 
which was to last during good behavior and made them irremovable 
except by impeachment. The Supreme Court then created and the 
judiciary which followed have, as I have already said, excited the 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 15 


admiration of the civilized world. The makers of the Constitution 
believed that there should be no power capable of deflecting a judge 
from the declaration of his honest belief, no threat of personal loss, 
no promise of future emolument, which could be held over him in 
order to sway his opinion. This conviction was ingrained and born 
with them, as natural to them as the air they breathed, as vital ns 
their personal honor. How could it have been otherwise? The inde¬ 
pendence of. the judiciary is one of the great landmarks in the long 
struggle which resulted in the political and personal freedom of the 
English-speaking people. The battle was fought out on English soil. 
If you will turn to the closing scenes of Henry IV, you will find there 
one of the noblest conceptions of the judicial office in the olden time 
ever expressed in literature. It was written in the days of the last 
Tudor or of the first. Stuart, in the time of the Star Chamber, of 
judges who decided at the pleasure of the King and when Francis 
Bacon, Lord Chancellor of England, took bribes or gifts. Yet lofty 
as is the conception, you will see that Shakespeare regarded the judge 
as embodying the person, the will, and the authority of the King. 

We all know how the first two Stuarts used the courts to punish 
their enemies and to prevent the assertion of political rights, which 
are now such commonplaces that the fact that they were ever ques¬ 
tioned is forgotten. The tyranny of the courts was one of the chief 
causes which led to the great rebellion, and out of that great rebel¬ 
lion, when the third Stuart had been restored, came the habeas 
corpus act, which has done more to protect personal liberty than 
any act ever passed. But the second Charles and the second James 
had learned nothing as to the judges. They expected them to do 
their bidding when the King had any interest at stake, and under 
the last Stuart the courts reached a very low point and the legal 
history of the time is characterized by the evil name of Jefi'reys. 
When the lawyers went to pay their homage to William of Orange, 
they were headed by Sergt. Maynard, then 90 years of age. “Mr. 
Sergeant,” said the prince, “ you must have survived all the lawyers 
of your standing.” “Yes, sir,” said the old man, “and, but for 
Your Highness, I should have survived the laws too.” The con¬ 
dition of the courts was indeed one of the strongest of the many 
bitter grievances which wrought the Revolution that placed William 
of Orange on the English throne. In the famous bill of rights 
there is no provision in regard to the courts, and it is not quite clear 
why it w^as omitted, although, apparently, it was due to an over¬ 
sight. In any event it was not forgotten. It was brought forward 
more than once in Parliament, but William announced that he would 
not assent to any act making the judges independent of the Crown. 
As his reign drew toward its close, however, he signified that 
although he w^ould veto a separate act he would accept the independ¬ 
ence of the judiciary if provided for in the act of settlement which 
was to determine the succession to the throne of England. There¬ 
fore we find in the act of settlement the clause which declares that 
the judges shall hold office during good behavior—“quamdiu se 
bene gesserint ”—and shall be removable only on the request of both 
houses of Parliament. 

It is necessary to pause a moment here and consider briefly the 
provision of the act of settlement for the removal of judges on an 
address by the houses, because it has been most incorrectly used by 


16 INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 

persons ignorant probably of its history as a precedent justifying the 
recall. The clause was inserted not for the purpose of controlling 
the judges but to protect them still further against the power of the 
Crown by which they had hitherto been dominated. The history of 
the clause since its enactment demonstrates what its purpose was as 
well as the fulfillment of that purpose in practice. During the two 
centuries which have elapsed since William III gave his assent to the 
act there has been, so far as I can learn, only one removal on address, 
that of Sir Jonah Barrington, an Irish judge, in 1806, more than a 
hundred years ago. There have been several cases where removal 
was petitioned for, but Barrington’s was, I think, the only one in 
which the demand was successful. The procedure employed shows 
that there is no resemblance whatever between the removal of a judge 
upon the address of the lawmaking body and the popular recall. 
They are utterly different, instituted for different purposes, and the 
former furnishes in reality a strong argument against the latter. In 
all the cases of removal or attempted removal by address of Parlia¬ 
ment the accused judge was carefully tried before a special committee 
of each house; he could be heard at the bar of either house, he could 
and did employ counsel, and could summon and cross-examine wit¬ 
nesses. This process is as far removed from the recall as the zenith 
from the nadir, for under the recall the accused judge has no oppor¬ 
tunity to summon or cross-examine witnesses, to appear by counsel, 
or to be properly heard and tried. He is obliged under the recall to 
make an appeal by the usual political methods and at the same time 
to withstand another candidate, while he is forced to seek a hearing 
from audiences ignorant of the law and inflamed against him perhaps 
by passion and prejudice. He has no chance whatever of a fair trial. 

Some of our States borrowed this provision of the act of settlement 
when they formed their constitutions. My own State of Massachu¬ 
setts was one of them. The power has been but rarely exercised by 
the legislature during llie hundred and thirty years which have passed 
since the Massachusetts constitution was adopted, but it so happened 
that when I was in the legislature a case occurred, and I was a member 
of the committee on the judiciary to whom the petitions were referred. 
The accused judge was tried as elaborately and fairly as he could 
have been by any court or by the Senate if he had been impeached. 
He had counsel, he summoned and cross-examined witnesses, and the 
trial, for it was nothing less, occupied weeks. The committee re¬ 
ported in favor of removal, but the house rejected the committee’s 
report. Some years later, after a similar trial, the address passed 
both houses and the judge was removed by the governor for misde¬ 
meanors and malfeasance in office. A mere statement of the pro¬ 
cedure shows at* once that the removal by address is simply a sum¬ 
mary form of impeachment with no relation or likeness to the 
recall. Removal by address is no more like the recall than impeach¬ 
ment is. If successful, they all result in the retirement of the judge 
accused, but there the resemblance ends. The makers of the Con¬ 
stitution did not follow the act of settlement and adopt the removal 
on address. They no doubt perceived its advantages, because it 
made possible the removal of a judge incapacitated by insanity or 
age or disease without inflicting upon him the stigma of an impeach¬ 
ment, but they also saw that the removal by address might be used 
for political and personal reasons, of which one instance occurred in 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 17 

my own State, and they probably determined that the risk of its 
abuse outweighed any possible benefit which might flow from its 
judicious exercise. 

They placed their courts as far as they could on the great heights 
of justice, above the gusts of popular passion. They guarded them 
in every possible way. They knew that judges were human and 
t herefore fallible. They knew that the courts would move more 
slowly than popular opinion or than Congress, but they felt equally 
sure that they would in the end follow that public opinion which was 
at once settled and well considered. All this they did because all 
history and especially the history and tradition of their own race 
taught them that the strongest bulwark of individual freedom and 
of human rights was to be found ultimately in an independent court, 
the corner stone of all liberty. Their ancestors had saved the judges 
from the Crown. They would not retrace their steps and make 
them subject to the anger or the whim of anyone else. 

They wished men to be free, 

As much from mobs as kings, 

From you as me. 

The problem which they then solved ha's in no wise changed. The 
independence of the judiciary is as vital to free institutions now as 
then. The system which our forefathers adopted has worked admi¬ 
rably and has commanded the applause of their children and of for¬ 
eign nations, who Bacon tells us are a present posterity. Now it is 
proposed to tear this all down and to replace the decisions of the 
court with the judgment of the market place. If I may borrow a 
phrase from the brilliant speech made recently by Mr. Littleton in the 
House, it is intended to substitute u government by tumult for gov¬ 
ernment by law.” 

Those who advocate this revolution in our system of government 
seem to think that a judge should be made responsive to the popular 
will, to the fleeting majority of one day which may be a minority the 
next. They would make their judges servile, and servile judges are a 
menace to freedom, no matter to whom their servitude is due. They 
talk of a judge’s duty to his constituents. A judge on the bench has 
no constituents and represents no one. He is there to administer 
justice. He is there not to make laws, but to decide what the law is. 
He must know neither friend nor foe. He is there to declare the law 
and to do justice between man and man. The advocates of the recall 
seem to believe that with subservient judges glancing timidly to right 
and left to learn what voters think, instead of looking steadfastly at 
the tables of the law, the poor will profit and the rich will suffer; that 
the individual will win and the corporation lose; that the powerful 
will be crushed and the weak will triumph, Avhile the sword of the 
recall hangs over the head of the judicial Damocles. If even this 
were true, nothing could be more fatal. A judge must know neither 
rich nor poor, neither strong nor weak. He must know only law and 
justice. He must never listen to Bassanio’s appeal, “To cio a great 
right, do a little wrong.” But the theory is in reality most lamentably 
false. No man fit to be a judge would, with few exceptions, take office 
under the recall. In the end the bench would be filled by the weak 
and the unscrupulous. The weak would make decisions to curry favor 
and hold votes. The unscrupulous would use their brief opportunity 
to assure their own fortunes, and that assurance could come only from 


18 INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 

the rich and the powerful, who would thus control the decisions. For 
the American court we should substitute the oriental cadi, with the 
bribe giver whispering in his ear. If a criminal happened to belong 
to some large and powerful organization in whose interest the crime 
was committed, he would have little to fear from a court where a 
judge subject to the recall presided. We should have courts like those 
ruled by the Camorra in the days of the Neapolitan Bourbons, except 
that the subservience of the judge would be insured by fear of the 
recall instead of by dread of assassination. The result would be the 
same, and certain criminals would become a privileged class and 
commit their crimes with impunity. 

In one of the noblest passages of his letter to the sheriffs of Bristol 
Edmund Burke says: 

The poorest being that crawls on earth contending to save itself from injustice 
and oppression is an object respectable in the eyes of God and man. 

Without the independent judge those words could never have been 
written, for before the independent judge alone could the poorest 
being hope to contend against injustice. Judges, of course, are 
human and therefore err. I know well that there have been one or 
two great cases where the decision of the highest court traveling be¬ 
yond its province has been reversed and swept away by the over¬ 
whelming force of public opinion and the irresistible current of 
events. I know only too well that we suffer from the abuse of tech¬ 
nicalities, from delays which are often a denial of justice, and that 
the methods of our criminal law are in many States a disgrace to 
civilization. But all these delays and abuses and miscarriages of 
justice are within the reach of Congress and legislatures, and these 
evils can be remedied by statute whenever public opinion demands a 
reform. Their continued existence is our own fault. Yet when all is 
said the errors of the highest courts are few and the abuses and short¬ 
comings to which I have referred can be cured by our own action. 
In the great mass of business, in the hundreds of trials which go on 
day by day and year by year, justice is done and the rights of all pro¬ 
tected. We may declare with truth that in the courts as we have 
known them the poor, the weak, the helpless have found protection 
and sometimes their only defense. A mob might thunder at the gates, 
money might exert its utmost power, but there in the court room the 
judge could see only the law and justice. The safeguard of the rights 
and liberties of minorities and individuals, of the weak and above all 
of the unpopular, as a rule, has been found only in the court. And 
now it is proposed to undo all this and to make the judges imme¬ 
diately dependent on the will of those upon whom they must pass 
judgment. If the framers of the Constitution were alive to-day, they 
would not find a single new condition to affect their faith in an inde¬ 
pendent judiciary. They would decide now, as they decided then. 
Are we ready to reverse their judgment and open the door to the 
flood of evils which will rush into the State as they always have 
rushed in when in times past the courts were controlled by an outside 
power ? 

Let me in closing end where I began by once more calling your 
attention to the purpose and spirit of the Constitution of the United 
States. The immediate object of the men who met at Philadelphia in 
1787 was to provide for a Union of the States in a General Govern¬ 
ment and for the adjustment of the relations between the General 


INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 19 

Government thus created and the several States. The result in this 
direction was a very remarkable piece of work and has ever since com¬ 
manded the admiration of the world. It was the application of the 
principles of federation on a scale and in a manner which made it 
practically a new achievement in the science of government and the 
fundamental questions growing out of the relations of the States to 
the General Government, which occupied in their discussion the first 
seventy years of our existence, and which culminated in a civil war, 
have been .settled. No one to-day desires to disturb those relations as 
they have been finally determined and no change in them is sought by 
any of those who now urge reforms upon us. 

The rest of the work in 1787 was the establishment and declaration 
of certain great principles upon which free government was to rest. 
In the Constitution itself the makers acted on the principle that the 
three great branches of government—the legislative, the executive, 
and. the judicial—should be equal, independent, and coordinate. 
Their action carried out in practice the fundamental principle of 
free government, as I conceive it, which is expressed in the constitu¬ 
tion of Massachusetts in specific words. Let me quote those words 
to you. for they are, as I believe, a very great and a very noble declara¬ 
tion. The thirtieth article of the constitution of Massachusetts says: 

In the government of this Commonwealth the legislative department shall 
never exercise the executive and judicial powers, or either of them; the execu¬ 
tive shall never exercise the legislative and judicial powers, or either of them; 
the judicial shall never exercise the legislative and executive powers, or either 
of them, to the end it may be a government of laws and not of men. 

That is one and perhaps the greatest of the principles embodied 
by its makers in the Constitution of the United States. But it is 
only one of many. In the first ten articles of amendment, without 
which the Constitution would never have been ratified by the neces¬ 
sary number of States, there is embodied, as I have said, a bill of 
rights, and in those ten amendments every line is a statement of a 
general principle. The bill of rights was intended to protect the 
rights of minorities and of individuals. The separation of the three 
great departments was meant to prevent the concentration of power, 
and all were intended to put limitations upon numerical majorities. 
The framers of the Constitution did not believe that any man or any 
body of men could safely be intrusted with unlimited power. They 
thought, and all experience justified them in thinking, that human 
nature could not support the temptation which unlimited power 
always brings. They had deeply ingrained the belief of the English- 
speaking people that the power of the King should be strictly limited. 
They felt that this great principle applied with equal force to ten 
thousand or ten million kings—in other words, to a popular majority 
of numbers. They established a representative democracy and a 
thoroughly popular government, but they thought that the “ right 
divine of kings to govern wrong ” was as false and dangerous a maxim 
when applied to many men called voters as when applied to one who 
happened to wear a crown. 

The people, through their delegates, made the Constitution. They 
can unmake it. They can create and they destroy, but the destruc¬ 
tion or the alteration must be the work of the people and not of a 
temporary majority of voters. It is for this reason that it is pro¬ 
vided in the Constitution that amendment and change can only come 
by methods which insure, so far as possible, the expression of the 


20 INITIATIVE AND REFERENDUM AND RECALL OF JUDGES. 


will of a steadfast and decisive if not overwhelming majority of 
the people. Two-thirds nf their representatives in Congress and 
the Senate must vote for an amendment, and three-fourths of the 
States must adopt it. The British constitution puts limitations on 
the power of the Crown: the American Constitution puts limitations 
on the power of the majority of the voters. These limitations are to 
assure the preservation of the Constitution from any change which 
the people—the whole people and not merely a majority of 
voters—do not demand and to make it certain that there shall be 
no amendment except after ample consideration and by the most 
decisive expression of the people’s will. If all these checks and 
balances, all these carefully devised safeguards which are to secure 
the people in their own government and to protect minorities and 
individuals, are to be swept away, then there is no need of any Con¬ 
stitution at all. General principles must then be cast to the winds, 
and we must hold our lives, our honor, our liberties, and our prop¬ 
erty at the will of a majority of numbers, narrow perhaps, fleeting, 
uncertain; here to-day and gone to-morrow, from which no man can 
gather assurance as to his future or as to his rights. 

The most vital perhaps of all the great principles embodied in 
the Constitution is that of securing the absolute independence of the 
judiciary. Courts are human and they have erred, but bear in mind 
that this is a comparative world. As Dr. Johnson wisely said: 

In political regulations good can never be complete; it can only be pre¬ 
dominant. 

It is not a question of whether you are going to substitute for a 
system imperfect with some of the imperfections inherent in human 
nature another system absolutely perfect and final. The question 
to be decided is whether the system which is proposed is better 
than the system we have. The great Roman jurist, Ulpian, defined 
the law in a memorable phrase which was subsequently embodied 
in the Digest or Pandects of Justinian. Let me recall it to you: 

Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Juris 
praecepta sunt bsec: boneste vivere, alterum non laedere, suum cuique tribuere. 
Jurisprudencia est divinarum atque bumanarum rerum notitia, justi atque 
injusti scientia. 

That is a great and noble conception of the law and one that it 
is well to bear in mind so that you may determine where it is most 
likely to be observed and held sacred whether it will be most 
surely found in the quiet of the court or among vast masses of men 
heated with political and party passion. In the long course of the 
centuries during which western civilization has been developed it 
has been proved again and again that whatever its defects there is 
nothing so essential, so vital to human rights and human liberty, 
as an independent court. Beware how you break down that prin¬ 
ciple because courts here and there have erred. Hard cases make 
the worst laws and bad laws are the breeders of anarchy and dis¬ 
order. We must proceed, if we would proceed with safety and last¬ 
ing results, on general principles; and if history proves anything 
it proves that the greatest safeguard of human Tights in the long 
run is to be found in independent courts which can be swayed neither 
by the whisper of the bribe giver, by the clamor of the mob, by the 
command of the autocrat, or by the dark threats of secret organiza¬ 
tions. 


11 } 



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